Kambol (Phnom Penh, Cambodia). 28/05/2009: Alain Werner, civil party lawyer, on day 23 of Duch's trial at the ECCC©John Vink/ MagnumKa-set
By Stéphanie Gée
28-05-2009
Following a pertinent review of torture and the practice of confessions, among others, with expert Craig Etcheson, the hearing of May 28th gave rise to an intense exchange between the international lawyer of Duch and the U.S. expert. During the whole afternoon, François Roux put forth his arguments with method, sketching the main characteristics of the Khmer Rouge regime and making sure to request Craig Etcheson's agreement on each new point raised: Democratic Kampuchea was a “regime of terror” that relied on the obligation of secrecy, an extremely centralised power, the systematic indoctrination of party members, a vertical communication system, a policy of spying and denunciation, a police State that practised mass purges... The lawyer thus pulled the expert towards his conclusions...
The practice of torture, an “oral tradition” that was encouraged
Returning to the meaning to give to the Khmer word “smashing”, which often featured in the Khmer Rouge terminology, expert Craig Etcheson, following the accused, recognised that it meant more than killing and was often translated by “crushing.” He explained this was in line with a long process aimed not only to smash physically but also psychologically. He said that the practice in S-21 was ideally adapted to the dehumanisation of the individual psyche. Alain Werner, co-lawyer for civil party group 1, then asked him if a torture policy was clearly formulated. “I have never seen an order or directive of the Central Committee that explicitly ordered torture,” the American replied, stressing, on the basis of various statements, that the Khmer Rouge explicitly leaders wanted great sufferings to be inflicted upon their enemies.
“Who designed these torture techniques?”, the lawyer asked him. “That is something we wondered about for a long time. Most of the time, they were developed through practice and were inherited from those used by the Vietnamese communists. It was like some kind of oral tradition.” For the expert, Duch was the main trainer in those techniques. “In security centres at the zone, sector and district levels, the range of torture practices seemed to be limited to beating, whipping, suffocation by plastic bag and electrocution. In S-21, there were supplementary techniques, like burning, ripping off fingernails, […], pouring salt on open wounds, using poisonous insects, various forms of water torture and hanging by the hands tied in the back until the shoulders dislocated, etc.”
On the use of the contents of confessions
President Nil Nonn then intervened to remind all parties that “all statements made as a result of torture cannot be invoked as evidence, except against a person accused of torture as evidence that the statement was made.” Judge Cartwright specified that this was not a formal decision and added that while such a confession was in itself an admissible fact, its contents could not be accepted as a proper statement. The international co-Prosecutor remarked that the issue of the use of the confessions was currently before the co-Investigating Judges in case file 2. The issue is a crucial stake for the future of the debates.
The practice of confessions pushed to the extreme at S-21
In response to a series of pertinent questions from Alain Werner, Dr. Etcheson explained that another specificity of S-21 was that interrogation procedures were more vigorous and elaborate than in other places, due to the very nature of the individuals interrogated, that is for most of them, experienced revolutionaries who could talk about more topics of interest. In this death antechamber, some confessions were extracted over several months and could eventually total more than a thousand pages, which was not comparable to what was done in the other security centres, he added.
Annotations, Duch's trademark
Annotations by Khmer Rouge cadres on confessions were also more dense in S-21. The expert recognised that Duch was the author of a great number of them, but he could not recall the existence of notes attributed to Nath, his predecessor at the head of S-21. The practice did not seem to result from an order, but from Duch's initiative. Craig Etcheson recalled that the accused had been a school teacher and hence used to writing notes on the papers of his pupils, and he may have kept this habit in his new functions as interrogator.
The expert clarified that a whole variety of annotations existed. Some seemed to have the same function as a routing sheet, that is it included information on the addressee of the confessions, others looked like memoranda for the accused (like “already read”, “to finish”). Some had instructions for the interrogators, for instance to order them to look for a specific type of information or to resort to torture. Some were more analytical, summarising and analysing the confessions, others dealt with larger aspects related to an ongoing investigation carried out in S-21 and going beyond the scope of the confession, and others still were similar to notes written by superiors such as Son Sen or Nuon Chea, etc.
Adaptable confessions
In front of the Trial Chamber on Monday May 18th, the accused said himself that people intervened on the confessions, by writing on them to modify the admissions. The Standing Committee had decided not to take any measures against Ta Mok or Son Sen, although they were implicated in confessions, Duch had said as an example, to illustrate the way confessions were fabricated from beginning to end. Alain Werner reminded that when one wanted someone to be arrested, one arranged to adjust the confessions to this effect. “I think that beyond the statement made by the accused, it is something that occurred in some cases,” Craig Etcheson admitted. “[...] It is difficult to prove who made these corrections, but the regime's high-ranking leaders, that is Son Sen, Nuon Chea, and maybe even Pol Pot, could have been responsible for such interventions.”
A paranoia sustained by the hunt for enemies
Although purges became widespread within the Revolutionary Army of Kampuchea (RAK), the expert deemed that it was the contents of the confessions extracted in S-21 that convinced the superiors there was a conspiracy against them by several military officers. After reminding him of his comments on the previous day – that purges within the Ministry of Economy could be explained by the paranoia of the Central Committee and a system of systematic detection of enemies devised by the accused –, Alain Werner asked the expert whether that system could have fed and reinforced the Standing Committee's paranoia. Craig Etcheson answered that it was a good example of a feedback loop system, in which the system fuelled itself and generated this kind of phenomenon with an increasingly greater energy.
Duch spared by the purges
Alain Werner continued his examination. Noting that most, if not all, of the directors of security centres in Democratic Kampuchea were victims of purges, as were an important proportion of the staff in S-21, he wondered that Duch did not experience the same fate. “In my opinion, the accused himself was not purged because his superiors considered him effective and loyal,” the expert commented.
How to measure the most important security centre
It was then the turn of the defence to interrogate the expert witness. Duch's Cambodian lawyer was first and asked which was the most important security centre in Democratic Kampuchea in terms of size. “If one measures size in terms of the number of staff employed at a security office, I think, unquestionably, S-21 was the largest,” Craig Etcheson replied. “If, on the other hand, one measures the size of a security office by the total number of victims who were persecuted and/or murdered there, then it is more difficult to compare because very few security offices have surviving records in such detail as S-21.” That was not the answer the lawyer expected, who argued that if S-21 had an important staff, it was because it encompassed three sites, which involved a whole circuit of supply. For him, the most important centre is the one where the greatest number of people lost their lives.
The Angkar explained by Craig Etcheson
Kar Savuth moved on and invited the expert to define what Angkar was. “The Communist Party of Kampuchea [CPK] adopted the use of the term 'Angkar', which is Khmer for 'organisation' from a similar usage by the Vietnamese Communist Party. At different times, to different people within the CPK, this term seems to have been understood in different ways. For some, it referred to the entire organisation of the CPK, for others, it could be used to refer to any individual member of the CPK [...] or to the top leadership of the CPK […]. In other usages, Angkar appears to refer only to Pol Pot or sometimes to Pol Pot and Nuon Chea.”
A regime of terror
His international colleague took over. Before starting his questions, François Roux asked Craig Etcheson for a moral commitment: “In light of the information you have as a researcher on the one hand, and of your current functions with the office of the co-Prosecutors on the other hand, do you think you are able to reply to my questions with absolute freedom and independence, even if the answers you were to provide were contrary to the strategy of the office of the co-Prosecutors?” “Yes, I believe so,” the expert answered.
Invited to define what a regime of terror is, the expert complied: “I would define a terror regime as a government or similar organisation that employs methods of arbitrary violence to coerce the compliance of its own members or populations that it wishes to control.” “So, I can say that this is a definition that matches well the regime of Democratic Kampuchea?,” François Roux retorted. “Is that a question?” “Yes, it was,” the lawyer confirmed. “It is my personal view that the leadership of Democratic Kampuchea explicitly employed terror as a means of control,” the expert admitted.
In this game that the lawyer pulled him into, Craig Etcheson limited himself to answering the questions strictly, without ever straying... and remained unruffled.
Duch had a unique perspective on Democratic Kampuchea
A little later, François Roux: “And was everything that was implemented compartmentalised, with secrecy and vertically, so that the party centre was the only organ that knew what was happening in the country?” Craig Etcheson: “As a general rule, yes, although there may have been exceptions to that general rule. One exception that came immediately to mind is the accused person. Formally, he was not a member of the party centre. However, he had the opportunity to interrogate persons from all units of organisation, at all echelons, from all across the country. And in the course of that work, he gained a unique perspective on what was happening within Democratic Kampuchea.”
Duch, a stranger to the elaboration of CPK policy?
The lawyer also returned to comments made by the expert on the previous day: “You also said [...]: the fact that communication between heads of divisions and S-21 had to go through a vertical structure, as described by the accused, that pattern completely complies – these are your words – with the way I understood the CPK's strict monopoly within the party, the organisation and the military institution. [...] I am not mistaken, am I?” “Yes, that is correct,” the expert answered.
Kambol (Phnom Penh, Cambodia). 28/05/2009: Technician repairing the sound system in the press room on day 23 of Duch's trial at the ECCC©John Vink/ Magnum
Then, the French lawyer returned the focus on his client who, placed in this black picture, was unable to act upon a system that was beyond his control, he argued. Challenging it would have been sanctioned with certain death, he said. “After this overview, here is my question: would you concur with me to say, I suppose, that all the policy we have been talking about for the last hour, was established by the CPK leaders, very early, you said even before March 30th 1976 [date of important decisions taken by the Standing Committee], without Duch playing any part in the determination of this policy?” Craig Etcheson cannot agree: “I am not certain that this can be said. There are periods of time between the beginning of the regime, on April 17th 1975, and the order to establish S-21, on August 15th 1975, when I cannot clearly account for the whereabouts and activities of the accused person. So, I do not know which functions he may have been performing at that time.” François Roux persevered: “Was the accused ever a member of the CPK Standing Committee?” “I do not believe so,” the expert answered. The lawyer jumped at this point: “I believe I read in your report that the Standing Committee was the one making decisions on policies.” “Indeed, it is,” the American answered.
Roux tirelessly sought to get the expert to come round to his arguments: “Would you concur with me that this entire policy, as you describe it, fell outside of Duch's competence?” “I do not agree,” the expert said forcefully. And so on...
An impossible ranking of security centres, according to the expert
The French lawyer reminded that the Documentation Centre of Cambodia (DC-Cam) – an NGO which creation Craig Etcheson participated to – established lists of the nearly 200 security centres scattered around the country during Democratic Kampuchea and identified to this day, in which the centres are ranked by the number of victims. He then asked the expert “to tell the Chamber which rank S-21 occupied in these gruesome records” provided he was aware of the document. Craig Etcheson refused to venture down that path, explaining that, when it began this work, DC-Cam had no experience and was unable to find a precedent from other countries for such a task. He also added that as a result, he considered that some of the data must be regarded as “unreliable.” Reaction from Roux: “Thank you for the reservations you have expressed regarding the documents of DC-Cam. […] But you have not answered my question...”
The international co-prosecutor protested: “It is an attempt to add to the case file a document that is not there!” “Absolutely not,” the defence lawyer responded, “I am interrogating an expert under oath. He is aware of it or he is not.” Craig Etcheson's answer: “I am not.”
Duch's capacity of innovation and zeal
Things being clarified, Duch's lawyer said he wanted to “attack head-on” some fundamental questions. Returning to a comment made by the expert during the previous day's hearing on Duch's role and “methodology” in the purges, François Roux asked the expert “how the methodology used by Duch differed from the line imposed by the CPK and how it pertained to his own personal initiatives.” The expert: “[...] My understanding […] is that the accused person was very much an innovator, a creator, a developer and an institutionaliser of the methods of making very detailed confessions that are extracted over long periods of time. So that in some cases, it seems as if the victim is forced to name every person he or she has ever met and could remember their name. And then, those lists are used to go out and round up new batches of traitors to whom this same process is applied. And you see a very nearly exponential growth in the number of accused traitors and then the number of victims of purges. In part, it is the zeal with which the accused person pursued this project that caused this methodology to result in such a large number of victims. [...] On the one hand, the policies of the Standing Committee certainly played a role in the unfolding of this tragedy, while at the same time, the creativity, inventiveness and zeal of the cadres who were tasked with implementing those policies also contributed substantially to the magnitude of the disaster.” “Did they have the choice?”, François Roux asked. “As I suggested, one always has choices in life.” Do you agree with me that today, he [Duch] is still alive?”, Roux continued. “Yes, he is.”
S-21, “under the absolute authority of the superiors”, according to the defence
The co-Prosecutor reacted abruptly, considering that the defence's question implied that there were only two choices for a CPK cadre, “death or duty”, while there may have been other options like “fleeing”. François Roux rebuffed him: “Dear co-Prosecutor, it is not the time for your closing speech.” Then, the lawyer explained he had winced at the words “capacity of innovation” used by the expert. “I do not have the impression that from the top to the bottom of the hierarchy, any cadre could take the liberty to innovate, unless they had been asked to do so very strongly by their superiors.” And he added that, for his part, “the best term applicable to S-21 was that it was under the absolute authority of the superiors.”
The place of S-21 in the government
On Roux's request, Craig Etcheson reviewed a chart of the government of Democratic Kampuchea featuring S-21, to include in it bodies subordinate to the high command, military units, independent regiments and two offices of the high command. Earlier, the expert had explained he considered S-21 not as a combat unit but as an intelligence operation, and felt it was appropriate to include it in the chart of the government rather than in the chart of the combat units of the RAK. The corrected chart was presented at the end of the hearing. “The defence bore in mind your declarations, Mr. Echeson, indicating that all the division secretaries were superiors of Duch. Yet, here, I see them at the bottom of the chart. This bothers me. I would have also liked to see the high command of the Revolutionary Army of Kampuchea. [...] I do not understand. You have just told me that your report, at the time you wrote it, was a general report that did not focus specifically on S-21. Yet, you place it in this chart at a place that is not its one, and you have left out of the chart a number of people we would have liked to see at their right place.” And after a silence. “I forgot to tell you one thing: I do not like and I have never liked scapegoats.”
The hearing was adjourned and will only resume on June 8th. Duch will then be interrogated on the facts related to the implementation of the CPK policy at S-21, in the absence of François Roux. The French lawyer announced during the hearing that he would not be back until June 11th, as he would be held back by his new functions at the Special Tribunal for Lebanon.
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